200-year-old Argument Still Rages Over The Constitution's Flexibility

December 15, 1985|By James C. Quarles, Special to The Sentinel

The Supreme Court's job, as any grade schooler should know, is to interpret the U.S. Constitution. But how should it go about doing that?

Attorney General Edwin Meese thinks the court should be guided by the intentions of America's Founding Fathers, because it was they, after all, who framed the Constitution and thus knew best what it meant.

Supreme Court Justice William Brennan disagrees. He says the Constitution is a more flexible document, designed to be interpreted in light of changing social and economic conditions.

One of the basic points in Meese's argument concerns the question of the application of the Bill of Rights to the states. He points out, correctly, that the Bill of Rights applied only to the federal government, not to the states.

The Founding Fathers, worried about too much power being given to the federal government, ratified the Bill of Rights in 1791. They feared central, not state government, so the Bill of Rights was considered applicable only to federal power.

Court decisions in the first half of the 18th century upheld this distinction. But a great change in the Constitution was introduced by amendments adopted right after the Civil War. The 14th Amendment in particular severely limited the power of the states by providing that ''no state shall . . . deprive any person of life, liberty or property, without due process of law,'' nor deny any person equal protection of the laws.

These commands are directed specifically against the states. Even if the language were less clear, the historical context of the adoption of the amendment makes it plain that the thrust is against the states. But what does it mean, for example, for a state to deny ''due process''?

This raises a question that Meese and Brennan would answer quite differently. Put simply: Does the Bill of Rights now limit state action the same way it limits federal action? Certainly the Founding Fathers did not think so, because the 14th Amendment was not adopted until 1868. And those who ratified that amendment might have thought its scope was narrowly confined to the problems that gave rise to the Civil War.

But Brennan, and several other justices, past and present, have used the Bill of Rights to give content and meaning to the idea of ''due process,'' so that now the Supreme Court has held that in almost all instances the due process clause of the 14th Amendment restricts the power of each state in the same way the provisions of the Bill of Rights restrict the federal government. The result is that the Constitution protects a person against the state's exercise of power just as it protects him from the federal government. This development is significant because while ''due process'' is a quite general and flexible term, the Bill of Rights is full of much more specific guarantees.

The Supreme Court has not always taken this position. For a long time the court decided cases on the basis of whether it thought a specific guarantee in the Bill of Rights was important enough to be included as a part of the meaning of due process.

Freedom of speech and freedom of religion, for example, were always considered so fundamental that their denial by a state would amount to a denial of due process. But some other provisions of the Bill of Rights, such as the privilege against self-incrimination and freedom from double jeopardy, were less important, and the states could deny these rights unless the denial went so far as, for example, torturing a suspect to extract a confession, or wearing down an acquitted defendant with repeated retrials.

By reconsidering the importance of the rights in the Bill of Rights, the Supreme Court gradually has enlarged the number that are ''carried over'' to the 14th Amendment or ''incorporated'' by it, so that now virtually every part of the Bill of Rights is a restraint upon the states as well as upon the central government.

It is this process that has, for example, resulted in the familiar ''Miranda'' warnings, a doctrine the attorney general deplores. A person suspected of a crime and taken into police custody has the right under the Fifth Amendment to be free from compulsory self-incrimination. Because this right is fundamental, denial of it occurs when the suspect in the coercive atmosphere of police custody makes incriminating statements. Thus the state cannot use those statements in evidence to prove his guilt.

Did the framers of the Constitution intend that result? Meese would argue persuasively that there was no such intent. Brennan would argue that their intent doesn't matter; the Constitution must be allowed to solve problems quite different from those anticipated by the framers.